Medical marijuana laws are being adopted by states at such a quick pace that employers may be struggling to keep their drug-testing policies up-to-date – especially employers with multistate operations. The rapidly changing landscape of medical marijuana laws should prompt employers to review drug-testing policies and procedures to ensure conformity.
Listen to expert and attorney, Jim Reidy, from Sheehan Phinney, discuss current and future drug laws on the HR Break Room podcast, “A New Leaf on Drug Policy Screening Policies: Time for a change?”
States with Strong Employment Protections
Some states that have passed medical marijuana laws also have passed extensive employment protections for individuals holding “qualified patient” registration cards. Arizona, Delaware and Minnesota prohibit employers from discriminating against a person in hiring, termination or imposing any term or condition of employment based upon:
- a person’s status as a card holder
- a qualified patient’s positive drug test for marijuana components or metabolites
Exceptions to this rule do exist if:
- the employer would lose federal money or licensure due to federal law;
- the employee would be employed in a “safety-sensitive” position; or
- the employee used, possessed or was impaired by marijuana at work
Weaker Employment Protections
Other states in which marijuana is legal for medical purposes have passed some employment protections, but which are less stringent. In states such as Colorado, Illinois and Pennsylvania, an employer cannot discriminate based on a qualified patient’s card status, but generally, a positive drug test would be grounds for discipline or termination. Many other states, generally states where marijuana remains completely illegal, have no employment protections at all for qualified patients. States such as Oklahoma, Texas, and Ohio allow employers to have a zero-tolerance drug testing policy, regardless of whether an employee is a qualified patient in another state.
Another consideration for employers is whether to allow an employee’s medical marijuana use as a reasonable accommodation under the Americans with Disabilities Act (ADA). Courts have been relatively clear that the ADA does not protect individuals who use marijuana for medical purposes or require accommodation for such use. This is largely because marijuana is still a federally illicit drug. However, New York has its own state disability accommodation law that may require New York employers to reasonably accommodate “qualified patients” of medical marijuana.
Similarly, the Nevada legislature passed a bill amending its existing medical marijuana statute to expressly require employers to attempt to make reasonable accommodations for the medical needs of an employee who uses marijuana, if the employee holds a valid registry identification card. Employers would not be required to provide a reasonable accommodation if it would:
- pose a danger to persons or property;
- impose an undue hardship on the employer; or
- prohibit the employee from fulfilling any or all of his or her job responsibilities.
The complicated nature of the state and federal regulations relating to employee marijuana use creates difficulties drafting and enforcing consistent drug-testing policies and procedures. It is important for employers to continually review their existing drug-testing policies to ensure any new developments in the medical marijuana landscape have not outdated its policy.
Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.